McDermott and Comcare (Compensation)

[2022] AATA 195

McDermott and Comcare (Compensation) [2022] AATA 195 (9 February 2022)

Division:GENERAL DIVISION

File Number(s):      2019/2575

Re:Reagan McDermott

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:9 February 2022

Place:Sydney

The request to split the hearing to determine certain issues in this matter is refused.

..............................[sgd]..........................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – interlocutory application – worker’s compensation - application to  split the hearing to canvas certain issues of the matter first – application is refused.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

9 February 2022

1. This matter has a long and somewhat unfortunate history. Essentially, for various reasons, it has failed to progress. In particular, the Applicant has had several difficulties in getting legal representation, and it would appear there has also been a problem with relevant evidence. It has clearly been a frustrating process for both parties.

2. An application was made by the Respondent to have a preliminary hearing to determine two particular issues in the matter, the first was whether to split the hearing and the second related to the issuing of summonses. The Respondent argued that the hearing should be split in order to meet the Tribunal’s objective of being fair, economical, informal, and quick, and that splitting the proceedings  would make the process more accessible to the Applicant.

3. The Applicant opposed the Respondent’s argument that the matter should be split into two separate hearings, essentially on the basis that this would not simplify proceedings and save time. The Respondent also conceded that only a more limited part of the matter could be argued separately than what was originally put forward.

4. On balance, I do not accept that the matter should be dealt with in two discreet and separate hearings. This would represent in my view an unacceptable departure from normal practice and may result in prejudice to one or both parties. It would be very stressful for the Applicant , who is not legally represented, if she were to be put through the stress of two hearings. There is value, in terms of the overall objectives of  the Tribunal, and  it is likely to be more efficient for all of the arguments relevant to the proceedings to be heard in a single hearing, before the Tribunal, after which it can then make a decision based on all of the evidence in the context of the requirements of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

5. This means that both parties will require further time to prepare evidence and to deal with preliminary issues, including the issuing of summons. Accordingly, I have taken steps to have the matter listed for hearing in June 2022 before another member of the Tribunal with no previous exposure to the matter. Preliminary issues should be dealt with by that member, and I suggest it would be prudent for a directions hearing to be conducted in April to set out a timetable leading up to the hearing. This means the matter should progress to hearing in a timely way.

6. In relation to the Applicant’s request for the issue of summons, I note the request is not in proper form and therefore cannot be approved. This has been an ongoing problem for the Applicant, who has previously been advised by the registry of the Tribunal of the steps required to be taken.  It may be that the Applicant needs to obtain independent legal advice, or alternatively refile the request for summons in the correct form.

7. I note that at the interlocutory hearing the Respondent indicated that it would be able to assist the Applicant in obtaining some of the evidence she was seeking from her former employer.

   DECISION

8. The request to split the hearing to determine certain issues in this matter is refused.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

...............................[sgd].........................................

Associate

Dated: 9 February 2022

Date(s) of hearing:	1 February 2022
Applicant:	Self-represented
Solicitors for the Respondent:	Ms A. Fernandes, Sparke Helmore